Acclaim Holdings Pty. Ltd. v. Vlado Pty. Ltd.

Judges: Wallace J
Kennedy J

Pidgeon J

Court:
Supreme Court of Western Australia (Full Court)

Judgment date: Judgment handed down 25 October 1989.

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Pidgeon J.

I would agree with the conclusion of Kennedy J. that the relevant agreement has not been ``pleaded'' by being referred to in an indorsement of claim. In my view it follows that the judgment was a judgment regularly obtained. A writ had issued with the indorsement of claim set out in a way that the respondent was entitled to set it out. There was no appearance, and judgment was entered following proof of service. It may will be that the appellant has a defence inasmuch as the respondent would not be able to prove the claim as it would not be open to it to adduce the agreement by reason of its not being stamped. However the appellant in seeking to set aside this judgment to maintain such defence is in the position of a defendant setting aside a ``regular'' judgment and I would consider in that regard the law is as stated in the 1988 Supreme Court Practice (White Book) in the note 13/9/5 at p. 130 where it is said:

``If the judgment is regular, then it is an (almost) inflexible rule that there must be an affidavit of merits i.e. an affidavit stating facts showing a defence on the merits.''

and I would refer to the authorities there quoted.

In normal circumstances the officer allowing judgment by default would not know if an agreement relied upon is stamped or not. I do not consider it would be open to a defendant to allow judgment by default to be entered against him and then claim that it was not ``regular'' by reason of being able to point to a state of facts to show the respondent could not establish the claim. Keall J. on appeal in the District Court considered the question whether it was a

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ATC 5221

regular or an irregular judgment. As he came to the view that it was a regular judgment and as the appellant was not seeking to set it aside on the basis that it was in default in allowing it to be entered and of its having a good defence any question of possible defences do not arise. The appellant's defence here would appear to be that as the agreement of sale was not stamped it is of no effect and consequently the property in the goods had not passed to the appellant and this would amount to a defence to the claim for the price. We were informed that there was delivery of the goods to the appellant and being stock-in-trade it has no doubt disposed of the goods. If therefore this defence was raised in the pleadings there would appear to me to be a possibility that the plaintiff would have a claim for an equivalent amount on the alternative basis of detinue or conversion and this would give it a claim to the value of the goods. It is the value of the goods that is the claim in the indorsement.

In these circumstances it would appear to me to be very difficult for the appellant to file an affidavit that it has a defence to a claim for the value of goods.

It is for these reasons that I consider that the Court at this stage could only determine whether or not it is a regular judgment and the Court ought not to consider the question as to how the action may proceed if it is allowed to continue. I would therefore dismiss the appeal.

I would dismiss each appeal with costs.